This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2109

State of Minnesota,

Respondent,

vs.

Allen (NMN) Flowers,

Appellant.

Filed June 10, 1997

Affirmed

Crippen, Judge

Ramsey County District Court

File No. K9-96-248

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for Respondent)

Harlan Goulett, Allan H. Caplan, Allan Caplan & Associates, P.A., 525 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant challenges his convictions for fifth-degree possession of a controlled substance and second-degree assault with use of a firearm on grounds that the trial court gave erroneous instructions to the jury and that the prosecutor's closing argument constituted misconduct. We affirm.

FACTS

Appellant Allen Flowers's girlfriend testified that while visiting appellant's apartment she observed him smoking crack cocaine from a soda can. Later, she testified, appellant resisted her attempts to leave the apartment, finally retrieving a gun from elsewhere in the apartment and holding it at his side. When the woman attempted to leave again, appellant followed her, continued arguing with her, and then hit her. When the girlfriend tried to hit him, appellant grabbed her, turned her around, and shoved the gun into her back. While they struggled, appellant also started to choke her with both hands. Eventually, appellant threw her out of the apartment.

In a subsequent search of appellant's apartment, police found a loaded gun matching the girlfriend's description and a soda can that subsequently tested positive for cocaine residue.

Appellant was charged with second-degree assault with use of a firearm, fifth-degree possession of a controlled substance, and kidnapping. After a trial, the jury returned a verdict that acquitted appellant on the charge of kidnapping but found him guilty of the controlled substance and assault charges.

D E C I S I O N

1. Jury Instructions

The trial court has "considerable latitude" in selecting the language employed in jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990), cert. denied, 498 U.S. 1030 (1991). In construing a jury charge, the appellate court must review the jury instructions as a whole to determine "whether they fairly and adequately explained the law of the case." State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). A party's failure to object to an instruction at trial waives appellate review unless the trial court committed plain error. State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994).

a. Preliminary Instructions

Appellant alleges that two preliminary trial court statements that the jury "will be kept together until a decision is reached in this case" constitute reversible error.[1] Appellant primarily relies on State v. Martin, 297 Minn. 359, 365-69, 211 N.W.2d 765, 768-70 (1973) (reversing instruction, given after jury had begun deliberations, that jury must reach a unanimous decision because such a charge is coercive).

For several reasons, we find no basis to reverse. First, the court made the statements during relatively early stages of the trial and long before the circumstances underlying Martin arose. See State v. Fidel, 451 N.W.2d 350, 355 (Minn. App. 1990) (holding that instruction, given before the jury retired to deliberate, that "all of you must agree to a verdict" does not require reversal because it does not intrude into the jury's deliberations by "coercing a minority among a deadlocked jury to enter into a unanimous verdict"), review denied (Minn. Apr. 13, 1990). Next, the court's statements focused on instructing the jury to prepare for overnight stays away from home during deliberations, not on the legal requirements to reach a verdict. Finally, there was no reversible error because appellant's trial counsel made no objection at trial and we apply the higher plain error standard of review.

b. Final Jury Instructions

Appellant also challenges the propriety of the trial court's final jury instructions, alleging that they did not adequately comply with the model jury instructions. During the final charge to the jury, the trial court stated: "When you reach a verdict, it must be agreed upon by all of you. In other words, your verdict must be unanimous." The model instructions provide in pertinent part:

In order for you to return a verdict, whether guilty or not guilty, each juror must agree with the verdict. Your verdict must be unanimous.

You should discuss the case with one another, and deliberate with a view to reaching agreement, if you can do so without violence to your individual judgment.

10 Minnesota Practice, CRIMJIG 3.04 (1990). Appellant contends that CRIMJIG 3.04 makes it clear to the jury that they need not return a verdict.

We find no reversible error. First, appellant has cited no precedent that compels reversal for such comments made before the jury retires. In addition, although the trial court's language did not match CRIMJIG 3.04 exactly, its instructions made it clear that the jury need not reach a verdict because, during jury selection, it stated that the jury must presume appellant innocent until the state proves his guilt beyond a reasonable doubt, "if such time is ever reached," and charged the jury, "Each of you has a duty to consult with one another and to deliberate with a view towards reaching an agreement if you could do so." See Fidel, 451 N.W.2d at 355 (stating that additional correct instructions given before deliberation may reduce the impact of an erroneous instruction). Finally, appellant's trial counsel failed to object at trial, and we find that appellant has not satisfied the higher threshold of plain error on appeal.

Appellant also argues that we should always assume great prejudice and automatically reverse whenever a trial court speaks of unanimity without due caution. We need not address this argument in circumstances where it appears that cautious fact-finding was adequately urged by the trial court.

2. Response to Jury Question

In response to a jury's question on any point of law, the trial court has the discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all. State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986). A court shall give appropriate additional instructions in response to the jury's request on a point of law unless "the request would call upon the judge to express an opinion upon factual matters that the jury should determine." Minn. R. Crim. P. 26.03, subd 19(3). We will not grant a new trial on the basis of the trial court's errors unless they have prejudiced substantial rights of appellant. State v. Jensen, 448 N.W.2d 74, 76 (Minn. App. 1989).

Appellant asserts that the trial court injected its own view of the facts into the jury's deliberations by answering the following question posed by the jury after it had retired: "Does a gun have to be pointed at a person to be considered second-degree assault?" After discussing the appropriate response with both parties' counsel, the court stated that "[t]he answer to the question is no" and reread the jury instructions for assault.

Specifically, appellant alleges that "no" was an inappropriate answer. But appellant contorts the jury's actual question, suggesting that the trial court's comment was tantamount to an instruction that the jury need not believe the victim's testimony to convict him of assault. Appellant advances a strained and inappropriate reading of the communication between the jury and the trial court. The jury confined its question to a single point in the victim's testimony, not her entire testimony.

Moreover, the trial court exercised its broad discretion to answer the question, instead of merely rereading the instructions, because it believed that appellant's trial counsel, while discussing the elements for second-degree assault during his closing arguments, had confused the jury by making a hand gesture with a pointed finger, thereby implying that pointing a gun at somebody was an element of the crime. We find no abuse of discretion because the trial court answered the jury's question in an effort to resolve a matter of significant confusion in the case.

Finally, the trial court's answer did not prejudice appellant. A correct statement of law in a clarifying instruction may reduce prejudice to the defendant. Murphy, 380 N.W.2d at 772. The trial court made a correct statement of the law by answering the jury's question in the negative and rereading the assault instructions. Furthermore, as the trial court noted, the ultimate issue in the case was whether appellant acted with intent to cause fear in the victim, not whether he pointed the gun at her. Thus, the trial court did not commit reversible error.

3. Closing Statements

Judgment on the propriety of a prosecutor's final argument rests within the trial court's sound discretion. State v. James, 520 N.W.2d 399, 405 (Minn. 1994). Although defendants waive their right to challenge the prosecutor's closing remarks if they fail to object at trial, we may reverse a conviction absent such an objection if the prosecution's comments are unduly prejudicial. Id.

Appellant asserts that the prosecutor committed misconduct during her closing arguments because she contrasted her own life experiences with those of the younger victim and characterized appellant as "patently transparent" and a "user" of drugs and women. See State v. Washington, 521 N.W.2d 35, 39 (Minn. 1994) (holding that character attacks are improper during a prosecutor's closing argument). But prosecutors are not required to make a colorless closing argument. State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996). We conclude that the prosecutor's character allusions are not substantial and do not constitute error.

And prejudice resulting from the prosecutor's remarks was reduced by defense counsel's response to the statements in closing arguments. When appellant's trial counsel did not object to the prosecutor's closing arguments at trial and elected instead to respond to them, counsel forfeited the right to have the issue considered on appeal. State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983). The trial court did not abuse its discretion by failing to interrupt and correct the prosecutor's closing arguments.

Affirmed.

[ ]1Before the trial commenced, the trial court stated:

Now, I want to remind you * * * that while you're in the courtroom, then I have control over the time. Once you begin your deliberations, the time line is in your hands. And obviously there's no way of telling how long deliberations will take. But this is a felony. And that means that you will be kept together until a decision is reached in this case. I will try to let you know with as much advanced notice as I could give you about when we expect deliberations will begin. So in case you need to let anybody know that you're in deliberations and you might be tied up for awhile, then you'll have an opportunity to do that before deliberations actually begin.

Before a break near the end of the trial, the trial court instructed the jury as follows:

As far as time line is concerned, we do expect now to complete testimony today. Which means that I will submit the case for deliberations as early as possible tomorrow morning. All right. So as I mentioned yesterday, remember, this is a felony jury, which means that you will be kept together until a decision is reached in this case. So if you need to alert anybody, family or friends about the fact that you're going to begin deliberations tomorrow, and obviously, as I mentioned also yesterday, the control of the duration of the deliberations will be completely in your hands. You should take advantage of the opportunity either now or later on this evening to let anybody who needs to know that information know.